London, 3 July 2009 

In a ruling handed down by the UK Employment Appeals Tribunal (McAvoy, Llewellyn and others v. South Tyneside BC, Hartlepool BC, and Middlesbrough BC), on the 24 June 2009, a group of male employees successfully brought an equal pay claim against their employers – three Borough Councils in North-East England – who denied them the same settlements as their female co-workers following the successful claims of their female co-workers’ to equal pay.

The female employees had sought an equal pay settlement against their employers based on comparison with a group of male workers [M1] doing jobs of a comparable value which were dominated by men. Those men were being paid additional bonuses over a period of time though these bonuses were in the process of being phased out. The women won their claim to the same bonuses and were awarded them in arrears.

At the same time, a different group of male colleagues [M2] of the female claimants sought to ‘piggyback’ on their claim and obtain the same bonuses, this time using the female claimants as their comparator.  In the first instance the Employment Tribunal ruled in favour of the male claimants but applied the ruling only from the date of the successful claim of their female colleagues, therefore not covering the payment of the arrears.

Both the Councils and the male employees [M2] brought appeals against this judgment. The Councils challenged it as incorrect under the Equal Pay Act 1970, arguing, among other reasons, that there was a material difference between the groups in that the female claimants received their benefit based on a tribunal award rather than an agreed term of the contract and that such a claim could lead to male claimants such as M2 pursuing actions based on the hypothetical but unrealised claims of female colleagues who are paid less than another group of male colleagues.

The male claimants [M2] cross-appealed the decision not to award them the additional bonuses in arrears, arguing that if the women’s rights began in the past so did the men’s [M2].

Dismissing the appeals of the Councils, the Employment Appeals Tribunal ruled that there is no difference between terms of contracts which are statutorily imposed and those which are agreed for the purpose of the application of the Equal Pay Act. The Appeals Tribunal also affirmed that it was sufficient in such a case to show that ‘but for’ the claimants’ sex they would be entitled to the same pay as their comparator female colleagues.

Finally, on the matter of the period for which the male claimants [M2] were entitled to the bonuses paid in arrears, the Appeals Tribunal concluded that the female claimants had accrued a right to equivalent pay over a period of time and that it made no difference whether the amount was paid at the time or in arrears. As such, the male claimants [M2] were entitled to that same level of remuneration covering the entire period of time for which the comparison holds.

The Appeals Tribunal made it clear that this type of scenario fell squarely within the operation of the Equal Pay Act 1970:

“In our view it would be surprising and unsatisfactory if the 1970 Act offered no remedy to men in a situation like the present.  The case where men and women do the same job but receive different rates of pay is the paradigm of the kind of situation which the Act was intended to prevent.”

Jarlath Clifford, Legal Officer at The Equal Rights Trust said:

“This is an important step forward in making the law in this area more clear and consistent – for the Equal Pay Act to offer no protection in cases like this would be seriously damaging to the principle of equality.

“But the Court was very clear – this is about addressing pay inequality between men and women doing the same job.

“Men cannot make claims based on hypothetical claims by female counterparts, nor can they successfully challenge differing pay for other men doing different jobs.

“That said, the decision is a significant development and is likely to open the way for a huge number of claims in similar cases.”

To read the ERT case summary, click here.

To read the full case, click here.